DOJ To Reporter: We Can Prove You're Wrong, But We Want To Embarrass You, So We'll Wait

from the that's-not-how-it-works dept

Over at Cryptome today there's an absolutely incredible exchange between the Justice Department's Brian Fallon (from the Office of Public Affairs -- basically a PR guy) and Brad Heath, an investigative reporter from USA Today. Heath had sent the DOJ a FOIA request to the DOJ's Office of Professional Responsibility (OPR) asking basically whether or not the OPR had been involved in any investigation concerning the recently declassified FISA Court order, about how the NSA had misled the FISA court and abused its capabilities repeatedly. It certainly seems reasonable to try to find out if the DOJ then investigated those abuses and the NSA's misrepresentations to the FISA court.

The DOJ claimed that there were no responsive documents -- which even by itself is quite incredible. Heath appears to have then followed up with Fallon at the DOJ to seek comments. Fallon's response by itself is stunning:

I have an answer from OPR, and a FISC judge. I am not providing it to you because all you will do is seek to write around it because you are biased in favor of the idea that an inquiry should have been launched. So I will save what I have for another outlet after you publish.

Basically, this is the DOJ giving the middle finger to Heath, telling him that they have answers to his questions, but won't give them to him in order to purposely try to make him look bad by giving those quotes to someone else. Heath, quite reasonably, responded that he's been perfectly patient in waiting for an answer, but if none is forthcoming, he'll write the story as he has it (which, from the FOIA request, suggests that the DOJ did absolutely nothing about the NSA's abuses and misrepresentations to the FISC).

Fallon responds that he's "done negotiating" and claims that he "will work with someone else afterwards explaining why what you reported is off base." So, not only is the DOJ not answering the reporter, it's telling the reporter that the reporter has incorrect information but the DOJ refuses to correct the reporter in order to make the reporter look bad. Heath points out that he's not "negotiating" he's just asking for answers to basic questions. And then the real issue comes out in the DOJ's reply:

You are not actually open-minded to the idea of not writing the story. You are running it regardless. I have information that undercuts your premise, and would provide it if I thought you were able to be convinced that your story is off base. Instead, I think that to provide it to you would just allow you to cover your bases, and factor it into a story you still plan to write. So I prefer to hold onto the information and use it after the fact, with a different outlet that is more objective about whether an OPR inquiry was appropriate

Yeah. The DOJ is saying that it has answers to a reporter's questions, which it knows adds to the public debate about the DOJ's response to the NSA's activities, but because it's trying to stifle the report, it won't share the info with him. This is incredible. It's a clear move by the DOJ to try to silence the press with an effective threat: "if you agree not to publish your article, then we'll explain why we did what we did. If you do publish your article, we'll make you look foolish."

This is incredibly childish and unprofessional behavior by Fallon and the DOJ. Remember how this is supposed to be "the most transparent administration in history"? Apparently the DOJ thinks that only means "we'll be transparent if you only agree to write nice stuff about us." That's not how it works.

Heath points out that Fallon is wrong -- if Heath just wanted to publish the story he would have done so already, without waiting for a comment from the DOJ. And then he points out the obvious:

You can’t seriously ask me not to publish something on the basis of information you won’t share

Either way, this seems to highlight (once again) how the federal government, and especially the DOJ, views journalists these days -- especially investigative journalists. It will do anything possible to intimidate them into not publishing stories that might embarrass the administration. That's not transparency, it's thuggery and intimidation.

Re: Arrrggggghhhhh...

They may be dirtbags.
They may even be world-class dirtbags.
And even well-paid dirtbags.

But they will have something unique on their resume that distinguishes them from many other dirtbags. They are dirtbags who have worked inside the US Government, know the ropes, and are able to show corporate dirtbags how to game the system. That is worth at least a fantastically well paid industry job after they are out of office.

You can't really blame him

I mean if I worked for a government/agency that had been caught out in lie, after lie, after lie, in the past few weeks, it would be hard to pass up the chance to turn it around, if only for once, and even if it was less 'You just lied, and here's the proof of it' and more 'You were incorrect, and this information I refused to give you shows why'.

This is a rather remarkably frank admission from a senior DOJ official that there is a bias in disseminating public information, based on the publication and/or reporter (and note here that USA Today is a 'real newspaper' with 'real reporters', not some scruffy long-hair's blog).

I wonder what the exchange would be if the reporter said the story is now about the DOJ's refusal to give information specifically to USA Today, and would Mr. Fallon care to comment? I'd buy a paper to read THAT story.

surely the thing it shows most is the absolute contempt it views FIOA laws! what the hell is the point of having any FIOA laws if the departments that get them served just turns round and gives the finger? today, a law is only a law if it can be used against an ordinary person. when it's a wealthy person or a government agency, which, you must remember are supposed to be employed by us and working for us, on the receiving end, they can just ignore the law and tell the person making an accusation or a request to go fuck themselves! nice!!

Re: You can't really blame him

You're assuming that the secret DOJ information would actually make the DOJ look like it's doing their job. Personally, I doubt it. If the DOJ had documentation that would actually make them look good, they would want to share it. If USA Today published a biased article despite receiving that documentation, it would be even more embarrassing than it would to have their story proven incorrect at a later date.

Instead, I suspect that this is more of the same nonsense we've been seeing all along. The administration is caught doing things that it shouldn't; they claim they have secret documents to exonerate themselves, but that nobody can see the evidence; the documents get released, and it turns out that they doesn't exonerate anyone, and only provide further evidence of wrong-doing.

We've had over and over in the last months, exactly why the public can't trust the government to follow the laws of the land and the very documents that gives it the consent to govern. What none of these dirt bags have put together is that when the public gets far enough along, it will remove the consent to govern and most often that results in a revolution. I would really, really, hate to see that. A civil war is not what we need.

We have a government that is doing everything in it's power to hide and cover up the violations it is doing knowingly. An unlawful law does not make something legal. The Patriot Act is essentially such a law, breaking the Constitution for the short term result. We now see that short term is not in the picture as far as these 'public servants' are concerned. To them it is very much long term and permanent.

Re: They are being more transparent!

some of this information coming out has me so disoriented i wonder if i made a wrong turn and i'm now in soviet russia or red china.

it's time to start voting people out, and anyone not part of the solution, yada yada. if, at that time, the people pulling the strings decide voting should be suspended or something akin, dire times will be on us indeed.

Re:

"What none of these dirt bags have put together is that when the public gets far enough along, it will remove the consent to govern and most often that results in a revolution. I would really, really, hate to see that. A civil war is not what we need."

North Korea keeps its people too starved to fight back. The U.S. keeps its people too fat to bother.

The hole gets deeper!

"Brad is reporting on the lack of an OPR inquiry, but that only seems newsworthy if one might be warranted in the first place. It isnít. For the last several days, we asked Brad to exercise discretion rather than write a story that leaves a false impression that there was any evidence of misconduct or basis for an inquiry. We proposed putting him in touch with people who could independently explain why no inquiry was warranted in hopes it might persuade him. When it became clear he intended to publish his story regardless, there was no point in asking any of those people to reach out."

In other words, the DOJ is saying that USA today is biased because they think there should be an investigation into the lawyers who repeatedly made "substantial misrepresentations regarding the scope of a major collection program". Apparently repeatedly lying to one's own oversight court is not worthy of an inquiry.

Double it up

So maybe the DOJ didn't have responsive documents to the first inquiry, great, but now they dug themselves a hole. A second FOIA request as to what Fallon and the DOJ are withholding should prove ironic, amusing, and potentially enlightening.

no "Professional Responsibility"

Out of control government

Is it not clear to everyone that is not a single cell amoeba, that this government is completely out of control. We have life time employees that perpetuate the con of this government being truly representative of the American citizenry, when in fact they are running a ponzi scheme while slowly removing our Constitutional Rights. We have political courts now that favor business over citizens, Representatives that act as if they are just propagandists of their respective political party's. We have a ballot box but with the party system the way it is, it just perpetuates the party and not the principles this country was founded on. America is headed for the scrap heap of the once great institutions of history.